#### H. B. LAMB v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 2 June, 1920.)

1. Carriers of Goods— Commerce— Federal Employer’s Liability Act— Federal Decisions — Procedure—Employer and Employee — Master and Servant.

In an action against a common carrier by rail brought in tbe courts of tbe State under tbe Federal Employer’s Liability Act, tbe question of substantive liability must be determined according to tbe provisions of tbe Federal Statute when applicable and authoritative federal decisions construing tbe same, and tbe State regulations and rulings as to procedure will control except where tbe Federal statute makes provision to tbe contrary.

2. Negligence— Evidence— Circumstantial Evidence— Conjecture— Reasonable Probability — Federal Employer’s Liability Act — Employer and Employee — Master and Servant.

In an action against tbe carrier brought under tbe provisions of tbe Federal Employer’s Liability Act, both under our State and Federal decisions, tbe carrier’s negligence, upon which its liability depends, must *620be shown by affirmative proof, and that it was the proximate cause of the plaintiff’s injuries, but this negligence may be established by circumstantial evidence when the relevant facts so shown are of such significance as to remove the case from the realm of conjecture and permit the inference of negligence as the more reasonable probability.

3. Carriers of Goods— Employer and Employee— Master and Servant— Negligence — Dangerous Employment — Ereight Trains.

In both Federal and State jurisdictions, railroad companies in the operation of their freight trains are held to a high standard of care reasonably commensurate with the risks and dangers attendant upon the work, and although negligence may not be inferred from the ordinary jolts and jars incident to their operation, it may be imputed from a sudden, unusual and unnecessary stopping of such trains, that are likely to and do result in serious and substantial injuries to employees or passengers thereon.

4. Employer’ and Employee — Master and Servant — Federal Employer’s Liability Act — Commerce—Fellow Servant — Negligence.

The Federal Employer’s Liability Act, in suits coming under its provisions, abolishes the fellow servant doctrine by which an employer is relieved from liability for injuries due solely to the negligence of the fellow servant, and places such negligence on the same basis as if it had been the negligence of the employer.

5. Evidence — Nonsuit—Federal Court.

Under the rule of procedure, both in the State and Federal Courts, applicable to a motion of involuntary nonsuit is considered as equivalent to a demurrer to the evidence, and the facts making in favor of plaintiff’s cause of action, whether appearing in plaintiff’s or defendant’s evidence, must be taken as true and construed in the aspect most favorable to him.

6. Pleadings — Demurrer—Evidence— Nonsuit— Appeal and Error— Objections and Exceptions.

Where the defendant has not demurred to the complaint or moved to make the allegations more definite, and proceeds with the trial upon evidence on a determinative issue, an objection to the complaint on the ground that its allegations failed to make out a case of actionable negligence is waived, and a motion for nonsuit must be considered and determined on the evidence relevant to the issue.

7. Evidence — Demurrer—Employer and Employee — Master and Servant —Federal Employer’s Liability Act.

In plaintiff’s, an employee’s, action, brought under the Federal Employer’s Liability Act, for damages for an injury he alleged he had received, and caused by the defendant’s negligence, evidence is sufficient for the determination of the jury which tends to show that while the plaintiff was engaged in the scope of his employment in interstate commerce, the freight train, with which his occupation was connected, without warning or signal and without necessity, came from a ten mile speed to an unanticipated and sudden stop and complete stop, causing a violent jolt sufficient to knock plaintiff down, and render him for a time partially unconscious, and causing him serious and painful injuries, and a motion to nonsuit thereon is properly denied.

*6218. Same — Res Ipsa Loquitur — Instructions—Demurrer.

Semble, the Federal decisions applicable in that jurisdiction that the doctrine of res ipsa loquitur does not apply in action between employer and employee will not be followed under the Federal Employer’s Liability Act and in cases controlled by its provisions, but, Held,, its application will not be held for error in such cases where the trial judge merely refers to the doctrine as affording a circumstance which required the issue to be submitted to the jury, no specific objection is made to the charge on that account, and objection is only raised on motion to non- ' suit upon the evidence, whereon the occurrence itself, and all the accompanying facts and circumstances offered in evidence which tend to establish the liability, require that they be given consideration.

9. Same — Assumption of Risks.

While the doctrine of assumption of risks in an action by an employee under the Federal Employer’s Liability Act, is expressly recognized by the statute, the principle does not apply to the instant and unexpected negligence of the employer under circumstances which afford the employee no opportunity to know the conditions that threaten, or to appreciate the risks.

Cxvxl actioN, tried before Allen, J., and a jury, at October Term, 1919, of New Hanovee.

Tbe action is by an employee engaged in interstate commerce, and on duty at tbe time of tbe occurrence, to recover damages for personal injuries caused by tbe alleged negligence of defendant company, chiefly in tbe sudden, unusual, violent, and negligent stopping of a freight train by defendant company or its agents and employees whereby plaintiff received serious and painful physical injury from which he still suffers, etc.

There was denial of liability on the part of defendant — pleas of contributory neligence, assumption of risk — evidence offered by the parties to sustain their respective positions, and on issues submitted the jury rendered the following verdict:

“1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: ‘Yes.’

“2. Did the plaintiff assume the risk and danger of such injury?Answer: ‘No.’

“3. Did the plaintiff, of his own negligence, contribute to his injury, as alleged in the complaint? Answer: ‘No.’

“4. What damages, if any, is plaintiff entitled to recover? Answer: ‘$7,500.’ ”

The court having reduced this verdict to $3,500 damages, “plaintiff’s counsel consenting thereto,” there was judgment for said sum of $3,500, and defendant excepted and appealed, assigning for error the refusal to sustain defendant’s motion for nonsuit.

*622 Wright & Stevens for plaintiff.

Rountree & Davis for defendant.

Hoke, J.

Tbe action is brought under tbe Federal Employer’s Liability Act, and tbis being true, tbe question of substantive liability must be determined according to “its provisions applicable, and autboritative Federal decisions construing tbe same.” Jones v. R. R., 176 N. C., 260-264, citing Belch v. R. R., 176 N. C., 22; Erie R. R. v. Winfield, 244 U. S., 170; N. Y. Central v. Winfield, 244 U. S., 147; St. Louis, etc., R. R. v. Hesterly, Admr., 228 U. S., 702; Second Employers’ Liability Cases, 223 U. S., p. 1.

And tbe action having been instituted in tbe State Court, tbe State regulations and rulings as to procedure will control except where tbe Federal statute makes provision to tbe contrary; Belch v. R. R., 176 N. C., 22, and authorities cited, among others, Banserman v. Blunt, 147 U. S., 647; Quinette v. Pullman Co., 229 Fed., 333, and see, also, Fleming v. R. R., 160 N. C., 196; Horton v. R. R., 169 N. C., 116, opinion by Associate Justice Walker. Considering tbe record in view of these positions, and on tbe principal issue as to liability, that of defendant’s negligence, it is held in both Federal and State decisions that there must be affirmative proof of negligence of tbe defendant, tbe proximate cause of plaintiff’s injuries, and while tbis negligence may be established by circumstantial evidence, tbe relevant facts mqpt be of such significance as to remove tbe case from tbe realm of conjecture and permit tbe inference of negligence as tbe more reasonable probability. New Orleans, etc., R. R. v. Harris, Admr., 247 U. S., 367; Sweeney v. Erving, 228 U. S., 233; Looney v. R. R., 200 U. S., 480; Ridge v. R. R., 167 N. C., 510; Fitzgerald v. R. R., 141 N. C., 530.

Tbe principle referred to and applied in these and other decisions of like import is stated in Fitzgerald’s case, as follows: “Direct evidence of negligence is not required, but tbe same may be inferred from facts and attendant circumstances, and if tbe facts proved establish tbe more reasonable probability that tbe defendant has been guilty of actionable negligence, tbe cause cannot be withdrawn from tbe jury, though tbe probability of accident may arise on tbe evidence.”

Again, it is recognized in both jurisdictions that railroad companies in tbe operation of their freight trains are held to a high standard of care reasonably commensurate with tbe risks and dangers usually attendant upon tbe work, and although negligence may not be inferred from tbe ordinary jolts and jars incident to their operation, it may be imputed where there has been a “sudden, unusual, and unnecessary stopping of such trains, likely to and which do result in serious and substantial injuries to employees or passengers thereon.” Texas Pacific Ry. v. *623 Behymer, 189 U. S., 469; Texas Ry. v. Archibald, 170 U. S., 665-673; Indianapolis, etc., Ry. v. Horst, 93 U. S., 291; Jones v. R. R., 176 N. C., 260; Ridge v. R. R., 167 N. C., 510; Suttle v. R. R., 150 N. C., 668; Marable v. R. R., 142 N. C., 557; Cin. N. C. & T. P. Ry. v. Evans. Admr., 129 Ky., 152.

Further, the authoritative eases construing the statute are to the effect that as to suits coming under its provisions it abolishes the fellow-servant doctrine by which an employer is relieved from liability for injuries due solely to the negligence of the fellow-servant, and places such negligence “on the same basis as if it had been the negligence of the employer himself,” thereby removing much of the uncertainty which had led the courts in many instances to rule that the facts in'evidence tending to establish negligence were too conjectural to permit that the issue of liability be submitted to the jury. Chesapeake & Ohio Valley Ry. v. D. C. Atley, 241 U. S., 311, and cases cited.

And in reference to the rule of procedure applicable, it is uniformly held in this State that on a motion for involuntary nonsuit, considered with us as equivalent to a demurrer to the evidence, the facts making in favor of plaintiff’s cause of action whether appearing in plaintiff’s or defendant’s evidence, must be taken as true, and construed in the aspect most favorable to him. Aman v. Lumber Co., 160 N. C., 369; Dail v. Taylor, 151 N. C., 285; Biles v. R. R., 143 N. C., 78; a position that prevails also in the Federal practice. Chinoweth v. Haskell, 3 Peters, 92; Pawling v. U. S., 4 Cranch, 219.

In this connection it is contended for defendant that plaintiff has not In his complaint alleged facts sufficient to make out a case of actionable negligence, and therefore defendant’s motion for nonsuit should have been allowed. On this question we think the allegations of the complaint in sections 3 and 4, taken in connection with the averments as to negligence, and the conditions and nature of the stopping complained •of in section 9, are ample to set forth a cause of action, and if it were otherwise, defendant not having demurred to the complaint or moved to make the allegations more definite, but proceed to trial on a determinative issue, any objection to the complaint on the ground suggested is thereby waived, and in motion for nonsuit must be considered and determined on the evidence relevant to the issue. Bennett v. Tel. Co., 128 N. C., 103; Allen v. R. R., 120 N. C., 548; Whitley v. R. R., 119 N. C., 724.

A proper application of these principles to the facts presented are, we think, in full support of his Honor’s decision denying defendant’s motion for involuntary nonsuit, it appearing from the plaintiff’s testimony that a freight train, without warning or signal,' and without, necessity, so far as appears, came from a 10-mile speed to a sudden and *624complete stop, causing a violent jolt sufficient to knock plaintiff down while be was engaged in the ordinary performance of bis duties, and rendering bim for a time partially unconscious, and causing bim serious and painful physical injuries. Among other things, plaintiff, a witness in bis own behalf, testified as to being knocked down, and said: “I was accustomed to the usual and ordinary stopping of freight trains. There was enough difference in this and the usual stop to throw me down on the desk. I had my feet apart and my hand holding on the desk at. the time it happened. It was a very unusual method of stopping. Mr. Lewis was the engineer. The train had been handled pretty rough that day. There was no signal given to me that the train was going to stop suddenly.” s

Speaking of the accident report made out for the company, the witness testified further that Captain Loper, supervising the report, said he had a good mind to put as the cause of the injury “the negligence of the engineer in handling the train,” but desisted on the statement of Captain May, the conductor, that it might get Lewis into trouble. Asked the cause of the sudden stop of the train, the witness said it was either a “snap shot” brake or the “direct application of the air.” The snap shot brake seems to have been some defect in the mechanical conr trivances for applying the air. The defendant’s witnesses, the engineer and others, stated there were no snap shot brakes, and no defect in the mechanism for applying the air, and accepting these and other relevant statements making in favor of plaintiff’s claim as true, it permits as the more reasonable inference that the sudden stopping and consequent injury was caused by the negligence of the engineer in handling his train. For this negligence the company is held responsible by the express provisions of the statute, and in our opinion the evidence permits and requires that that issue be submitted to the jury.

It is urged for the defendant that the court, in its charge, erroneously recognized the doctrine of res ipsa loqvÁtur as applying to the case, and we were referred to numerous decisions of the Federal Court, to the effect that the position in question has no application to cases between employer and employee. These decisions, however, arose prior to the enactment of the Employers’ Liability Act, or in cases which did not come under its provisions. The position withdrawing cases of employee and employer was due chiefly to the prevalence also of the fellow-servant doctrine by which an employer was relieved from liability for injuries due solely to the negligence of the fellow-servant, and from the uncertainties as to the cause of the injury thereby created, the facts in nearly all of the cases indicating the negligence by some fellow-.servant as the more probable cause of the injury. The statute having, as we have seen, abolished the fellow-servant doctrine, there is doubt *625if the Federal Courts will adhere to the distinction adverted to in cases controlled by its provisions.

The contrary has been held in S. Ry. v. Derr, 240 Fed., 73, and this would seem to be the correct deduction from the premises.

The position, however, as we view it, is not open to defendant on the record. His Honor only referred to the doctrine of res ipsa loquitur as affording a circumstance which required that the issue of defendant’s negligence should be submitted to the jury; no specific objection is made to the charge on that account, and on a motion to nonsuit the occurrence itself, and all the accompanying facts and circumstances offered in evidence and which tend to establish liability, must be given consideration.

Again, it is insisted that the entire facts show that defendant is barred of recovery by reason of the assumption of the risks, a defense expressly recognized by the statute, and numerous decisions were cited to the effect that an employee assumed the risks of the jars and jolts which may be expected to occur in the operation of freight trains. The decisions referred to so hold, but it is also the recognized principle that an employee does not assume the risks due to the instant and unexpected negligence of the employer under circumstances which afford the employee no opportunity to know of the conditions that threaten or to appreciate the risks.

In Jones v. R. R., 176 N. C., 260, it was held: “A brakeman on a freight train, under the Federal Employers’ Liability Act, does not assume the risks of the sudden, unusual, and unnecessary stopping of the train by the engineer thereof while making a flying switch which, without warning, caused the injury complained of in the action.”

And speaking to the question as it prevails under the statute, the Court in the opinion said: “While the law in question clearly recognizes the assumption of risk as a defense in certain instances, under section 4 such a position is absolutely inhibited in cases where the violation of a Federal statute, enacted for the protection of the employees, contributed to the injury or death of employees; and by correct deduction from the terms and meaning of section 1, making railroads engaged as common carriers of interstate commerce liable in damages for injuries or death caused by the negligence of their officers, agents, or employees, the negligence of fellow-servants is withdrawn from the class of assumed risks in cases of unusual and instant negligence and under circumstances which afford the injured employee no opportunity to know of the conditions or appreciate the attendant dangers. This doctrine of assumption of risk is based upon knowledge, or a fair and reasonable opportunity to know, and usually this knowledge and opportunity must home in time to be of use.’ 26 Cyc., 1202, citing 160 Ind., 583. This principle is *626very generally approved in tbe cases and text-boobs on tbe subject; and in autboritative Federal decisions construing tbe act in question, in reference to tbe negligence of fellow-servants and tbe incidental assumption of risks, it bas been beld tbat tbe effect of tbis first section is to place tbe conduct of fellow-servants on tbe same plane as tbe employer bimself in sucb cases, and it is fully recognized tbat an employee does not assume tbe risks of bis employer’s negligence unless, as stated, be is given a fair opportunity to know and appreciate tbe risks to wbicb be is thereby subjected.” Citing Chesapeake & Ohio Ry. v. De Atly, 241 U. S., 311; Yazoo, etc., Ry. v. Wright, 234 U. S., 376; Seaboard Air Line v. Horton, 233 U. S., 492; Gila Valley, etc., Ry. v. Hall, 232 U. S., 94; Texas & Pacific Ry. v. Behymer, 189 U. S., 905; 2 Employer’s Liability Oases, 223 U. S., 1; Brybowski v. Erie R. Co., 88 N. J. L., 1 (95 At., 764); Richey on Fed. Emp. Liability Act, sec. 59.

We were also referred by defendant to Patton v. Ry., 179 U. S., 650, as an authority against plaintiff’s right to recover on tbe facts of tbe present record.

In tbat case plaintiff, a fireman on an engine drawing a passenger train from El Paso to Toyab and return, some three or four hours after one of those trips bad been made and while tbe engine was being moved in one of tbe railroad yards at El Paso, attempted to step off tbe engine and in doing so tbe step turned, and be fell so far under tbe engine tbat tbe wheels passed over bis foot and amputation became necessary. The' allegation being tbat tbe step turned because tbe bolt wbicb beld it was not securely fastened. It was found tbat ample and competent inspection was provided for, both at El Paso and Toyab, and no defect bad been discovered. There was also testimony tbat tbe fireman, for bis own convenience, was doing the work at tbe time before tbe engine was prepared and inspected for tbe succeeding trip, and further tbat the step might have been presently loosened in throwing heavy lumps of coal on tbe tender by tbe yardman or other employees in tbe line of their duties. Tbat case, however, was prior to tbe enactment of tbe Employers’ Liability Act, and when tbe fellow-servant doctrine was fully recognized, and tbe Court, approving tbe doctrine tbat while an employer was required to furnish safe and suitable appliances for bis workmen, be was not an insurer of their safety, beld tbat on tbe facts presented there were too many uncertainties, both as to tbe time and cause of tbe occurrence to permit tbat tbe issue of liability be submitted to tbe jury.

Tbe case does not seem to be applicable to tbe facts of tbis record, there being evidence as stated tbat tbe plaintiff bas been seriously in*627jured by sudden, violent, and unusual stopping of a freight train, that this was due to negligence on the part of the engineer in operating it, and for which negligence the company, as shown, is now liable by the express provisions of the statute under which the suit is brought.

We find no error in the record, and the judgment on the verdict is affirmed.

No error.